Myers v. Fulbright et al

Filing 17

ORDER denying 8 Motion for Preliminary Injunction. Signed by Judge Donald W. Molloy on 6/6/2017. (NOS)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

JUN 06 2017
Cterk. u.s Courts
District Of Montana
Missoula Division

CV 17-59-M-DWM-JCL

ROBERT MYERS,
Plaintiff,

ORDER
vs.
WILLIAM E. FULBRIGHT, in his
official capacity as the County
Attorney for Ravalli County;
TIMOTHY C. FOX, in his official
capacity as Attorney General for the
State of Montana,
Defendants.

Attorney Robert Myers ("Myers") seeks declaratory and injunctive relief in
this case. He argues that Montana's criminal defamation statute, Mont. Code Ann.

§ 45-8-212, violates the Free Speech Clause of the First Amendment, both facially
and as applied. (Doc. 1.) Myers seeks to enjoin Defendants William E. Fulbright,
County Attorney for Ravalli County, and Timothy C. Fox, Attorney General for
the State of Montana, from its enforcement on the grounds that the "'investigation'
of Myers' alleged criminal defamation and impending filing of criminal charges is
preventing him from preparing his defense against the government's disciplinary

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proceedings by inhibiting him from speaking to witnesses concerning Judge
Langton's misconduct" and "continuing to speak out about Judge Langton's
misconduct" and will "chill" witness corroboration of Judge Langton's alleged
misconduct. (Doc. 1 at~~ 64, 65, 73.) Myers' request for preliminary injunctive
relief (Doc. 8) is denied.
BACKGROUND

This case arises out of the 2016 campaign for Ravalli County District Judge
between Myers and incumbent District Judge Jeffrey Langton. (Doc.

1at~1.)

Myers made claims during the election that Judge Langton was unfit for office.
(Id.) During and after the campaign, Montana's Office of Disciplinary Counsel

("ODC"), the state agency established to enforce Montana's Rules of Professional
Conduct, filed three complaints against Myers, alleging violations of professional
conduct. The first, filed in March 2016, alleged professional misconduct during a
divorce matter in which Myers was involved with in 2013 and 2014. (Id.

at~~

23-

26; Doc. 1-2.) The second, filed July 15, 2016, alleged Myers violated the rules of
professional conduct when he made false and misleading campaign statements
about Judge Langton. 1 (Doc. 1 at~~ 27-44; Doc. 1-5.) The third, filed January 13,

The constitutionality of the rules at issue in this ODC complaint are the
subject of a separate lawsuit. See Myers v. Thompson, CV 16--45-H-DWM-DLC.
1

2

201 7, was based on Myers' October 2016 campaign advertisements which alleged
that "witnesses had come forward with first-hand knowledge ofLangton's drug
use but are afraid of retaliation. Fear of retaliation was the primary reason that the
recall petition against Langton failed .... " (Doc. 1 at~~ 45-54 (internal quotation
marks omitted); Doc. 1-9.) Myers' statements are based on three witnesses, Rex
Walker, Robert Farmer, and Heather Portner, who generally allege that Judge
Langton bought/did drugs, sentenced a youth that sold him drugs (Walker), and
drank alcohol with and provided it to minors. (See Docs. 1-7, 1-8.)
Judge Langton won the 2016 election. (Doc. 1 at~ 50.) Since that time,
Myers states he has been preparing his defenses to the ODC complaints,
specifically in that he has been "attempting to locate and interview other persons
who have witnessed Judge Langton using illegal drugs and other instances of his
abuse of power." (Id.

at~

54.) On May 1, 2017, Detective Garrett Van Hoose of

the Missoula County Sheriffs Office contacted Myers and informed him that
Judge Langton had filed a criminal defamation complaint against Myers pursuant
to§ 45-8-212, relating to Myers' October 2016 campaign advertisements. (Id.

at~

57.) Detective Van Hoose indicated that the complaint had been forwarded from
the Ravalli County Sheriffs Office for investigation. (Id.

at~

58.) Detective Van

Hoose also informed Myers that he was seeking to interview Walker, Farmer, and
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Portner. (Id. at il 61.) Myers alleges that the "investigation" is preventing from
preparing his defenses for his ODC proceedings by inhibiting form speaking to
witnesses and preventing him from continuing to speak out about Judge Langton's
misconduct in violation of the First Amendment. (Id. at ilil 64-65.) He requests
preliminary injunctive relief. (Doc. 8.)
ANALYSIS

A preliminary injunction is an extraordinary remedy never awarded as a
matter of right. Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 22 (2008).
"A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest." Id. at 20. A plaintiff may be entitled to
preliminary relief ifhe raises "serious questions going to the merits" so long as the
balance of hardships tips sharply in his favor and the remaining Winter factors are
also met. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
2011 ). Because Myers fails to show irreparable harm, his motion fails.
Myers brings both facial and as-applied constitutional challenges to
Montana Code Annotated§ 45-8-212, Montana's criminal defamation statute.
That statute provides:
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( 1) Defamatory matter is anything that exposes a person or a group,
class, or association to hatred, contempt, ridicule, degradation, or
disgrace in society or injury to the person's or its business or occupation.
(2) Whoever, with knowledge of its defamatory character, orally, in
writing, or by any other means, including by electronic communication,
as defined in 45-8-213, communicates any defamatory matter to a third
person without the consent of the person defamed commits the offense
of criminal defamation and may be sentenced to imprisonment for not
more than 6 months in the county jail or a fine of not more than $500,
or both.
(3) Violation of subsection (2) is justified if:
(a) the defamatory matter is true;
(b) the communication is absolutely privileged;
(c) the communication consists of fair comment made in good
faith with respect to persons participating in matters of public
concern;
(d) the communication consists of a fair and true report or a fair
summary of any judicial, legislative, or other public or official
proceedings; or
(e) the communication is between persons each having an interest
or duty with respect to the subject matter of the communication
and is made with the purpose to further the interest or duty.
(4) A person may not be convicted on the basis of an oral
communication of defamatory matter except upon the testimony of at
least two other persons that they heard and understood the oral statement
as defamatory or upon a plea of guilty or nolo contendere.
§ 45-8-212. Myers argues that the statute is facially unconstitutional because it
does not have an "actual malice" requirement, and that it is also unconstitutional
as applied to him because it prevents him from repeating allegations of misconduct
against Judge Langton even if those allegations could be corroborated.
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To warrant preliminary injunctive relief, however, a plaintiff must show that
"irreparable harm is likely," not just possible. Alliance for the Wild Rockies, 632
F.3d at 1135. Myers fails to do so here. No criminal charges have been filed
against Myers and the investigation has not moved beyond the investigatory stage.
And, even if charged, the conduct being investigated is not Myers' continued
statements and allegations regarding Judge Langton, but his past conduct (which
occurred in October 2016). Myers presents no evidence that the defendants have
used the threat of criminal charges to stop him from speaking in the present or
"chilled" the speech of others. Because Myers fails to show irreparable harm
requiring immediate injunctive relief, his motion is denied and the remaining
Winter elements are not addressed.
CONCLUSION

Accordingly, IT IS ORDERED that the Myers' motion for preliminary
injunctive relief (Doc. 8) is DENIED.
Dated this

fl'- day of June, 2017.

Donald W. oll y, District Judge
United Statfs Dis rict Court

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